CHONG YU ON v. THE HONG KONG COURT OF FINAL APPEAL (“CFA”) AND OTHERS

[English Translation – 英譯本]
HCA 244/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 244 OF 2017

______________

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DECISION

The cause

1.  The plaintiff in this case commenced this action by a writ of summons against the Hong Kong Court of Final Appeal (“CFA”), the Registrar of the CFA, and the three judges of the CFA stated above.  In his statement of claim, the plaintiff stated the following causes of action against the defendants:

  (1) The 1^st defendant: failed to arrange sufficient Chinese Permanent Judge to deal with his case, nor did it request him to provide his appeal applications in English, hence conniving at the misconducts of the 2^nd to 5^th defendants; discriminated against the statutory status of the Chinese language in Hong Kong, and discriminated against him who was acting in person infringing upon and depriving of his legal right to apply for appeal to the CFA;

  (2) The 2^nd defendant, 3^rd defendant, 4^th defendant and 5^th defendant: put it simply, the 2^nd defendant, while dealing with the 4 appeal applications made by the plaintiff, namely, FAMV 3/2016, FAMV 4/2016, FAMV 12/2016 and FAMV 28/2016, decided to adopt the summary procedures stated in Rule 7 only in a short time, comparing with the time needed for other cases, and refused his application for appeal.  The plaintiff then, following the procedures stated in Rule 7, proceeded further for leave to appeal to the Appeal Committee of the CFA, the members of which were the 3^rd defendant, 4^th defendant and 5^th defendant who dealt with the matter in the same way as the 2^nd defendant did and refused his application for appeal in a short time comparing with the time needed for other cases.  Therefore, the plaintiff was of the view that obviously there was dereliction on the part of the 2^nd to 5^th defendants who had failed to perform their duty and discriminated against him infringing upon his legal right.

The legal principles

2.  Based on the following legal principles, I summonsed the plaintiff to court to explain why his claim should not be struck out by the court.

3.  First of all, the court may, on its own motion, strike out the plaintiff’s writ of summons under Order 18 rule 19 of the Rules of the High Court, which provides that:

19. Striking out pleadings and indorsements (O. 18, r. 19)

(1) The Court may, either of its own motion …, at any stage of the proceedings order to be struck out or amended any pleading or the indorsement of any writ in the action, or anything in any pleading or in the indorsement, on the ground that—  (L.N. 152 of 2008)

(a) it discloses no reasonable cause of action or defence, as the case may be; or

(b) it is scandalous, frivolous or vexatious; or

(c) it may prejudice, embarrass or delay the fair trial of the action; or

(d) it is otherwise an abuse of the process of the court;

and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.

(2) ……

4.  One of the underlying objectives of the rules of civil proceedings under Order 1A rule 1 (f) of the Rules of the High Court, Cap. 4A is to ensure that the resources of the court are distributed fairly.  The court has a duty to ensure that its resources will not be wasted by action which is an abuse of the court’s process.

5.  The authority Hong Kong Civil Procedure 2017 Volume 1 paragraphs 18/19/1-3A at p.457 states that the court may, under any of the above circumstances, on its own motion strike out this kind of claim to avoid abuse of the court’s process and wastage of the government’s or party’s resources.  However, it is my view that before making any decision, the court should give the plaintiff a chance to explain why the court should not strike out his application.

6.  In Ng Yat Chi v Max Share Ltd & Another [2005] 1 HKLRD 473, the CFA has clearly stated that although Article 35 of the Basic Law has stipulated that the Hong Kong residents shall have the right to access to the courts, that right cannot be a right to abuse the court’s process.  The court must properly and effectively prevent any party from abusing the court’s process in order to prevent injustice to the other parties to the litigation and ensure the operation of a fair and efficient judicial system.[1]

7.  In Wong Shui Kee, Roger v The Hon Chief Justice, Mr. Justice Ma & Others (HCA 1474/2001, 22 September 2011), the Court of First Instance of the High Court has clearly pointed out that when the plaintiff has made serious allegations against the defendant, the plaintiff must have proper factual foundation before he can advance the same in front of a court.[2]  The 2^nd to 5^th defendants in this case are the Registrar and Permanent Judges of the CFA.  The allegations made by the plaintiff against them will affect the confidence of the public in the judicial system of Hong Kong leading to serious consequences.  For that reason, the court must deal with the matter seriously in accordance with law.

8.  In Ha Francesca v Tsai Kut Kan (No.1) [1982] 1 HKC 382, the Court of Appeal said that unless the pleadings are obviously unsustainable and cannot be remedied by amendments and that it is impossible, not just improbable, for the case to succeed before a court or the pleadings have failed to disclose any reasonable cause of action or that the proceedings are frivolous or vexatious, then, there should be no striking out.[3]

9.  In The New China Hong Kong Group Ltd (In Creditors’ Voluntary Liquidation) and Another v Ng Kwai Kai, Kenneth & Others (HCA 519/2010, 11 February 2011), Fok JA (as he then was) has said that the above decision of the Court of Appeal was still applicable under the new law after the implementation of the Civil Justice Reform.[4]  In other words, if a claim is obviously unmeritorious and cannot be remedied, the court should strike it out in accordance with the law stated above.

10.  Abuse of the court’s process includes instituting an action against a judicial officer for the exercise of his jurisdiction or what happened during proceedings or the result of a case.  Such kind of action should be struck out because according to Garnett v Ferrand (1827) 6 B. & C. 611, 625[5], Hunter v Chief Constable of West Midlands Police [1982] AC 529, and Somasundaram v M Julius Melchior & Co [1988] 1 WLR 1394, a judicial officer cannot be held liable in any civil or criminal proceedings against him for the above reasons.  In Choi Ping Wing v Chief Executive of HKSAR & Others [2006] 1 HKLRD 666, the Court of First Instance of the High Court of Hong Kong has also adopted the said legal principle.  In that case, the Court of First Instance has also, on its own motion, asked the plaintiff to go to court to explain why his pleadings should not be struck out by the court.

11.  After the Civil Justice Reform, the court has also adopted the same approach of initiating striking out on its own motion, see Choi Ping Wing v Chief Executive of HKSAR & Others [2006] 1 HKLRD 666, Yeung Kwong Tat (Edward) v Hong Kong & Shanghai Banking Corporation Ltd (HCA 1628/2010, 25 November 2010), WongShui Kee, Roger v The Hon Chief Justice, Mr. Justice Ma & Others (HCA 1474/2011, 22 September 2011), Lo Kin Shun (transliteration) v the High Court (HCMP 425/2015, 15 May 2015), and Leung Wai Chun (transliteration) v The Chief Judge of the High Court of Hong Kong, Master Jack Wong and Master Simon Lo (HCA 2450/2015, 17 November 2015).

Discussion and decision

12.  Now I turn to the discussion on why the court needs to strike out the writ of summons of the plaintiff based on the above legal principles.

13.  The CFA, the 1^st defendant against whom the plaintiff claims, is not a legal entity and so it cannot be a defendant.  If it is simply a question of the party, the plaintiff can amend his writ of summons and then continue the proceedings. However, he claims against the 1^st defendant for discriminating against an unrepresented application for appeal lodged to it, the reason being that it, by exercising section 7 of the Hong Kong Court of Final Appeal Rules, dealt with and dismissed his application for appeal within a short period of time without a hearing and no reasons for dismissal were set out, whereas other represented cases have a bigger chance of being heard.  Also, the CFA, when refusing the represented appeal applications, did give reasons for decision in its judgment.  The plaintiff pointed out the above situation in his written statement based on the figures he obtained from his research.  He even stressed before me that the CFA did not give its reasons for decision when refusing his application for appeal.  From here he came to a conclusion that the judges of the CFA were remiss in their duty acting in a perfunctory manner when dismissing his appeal without taking into consideration seriously the documents submitted by him as they were discriminating against him who was acting in person.

14.  In my judgment, from what the plaintiff has said above, one cannot draw the conclusion that the judges of the CFA were remiss in their duty acting in a perfunctory manner when dismissing his appeal without taking into consideration seriously the documents submitted by him as they were discriminating against him who was acting in person.  Pursuant to section 7 of the Hong Kong Court of Final Appeal Rules, Cap. 484A, the provisions on the application which discloses no reasonable grounds, or is frivolous or fails to comply with these Rules:

(1)  Where the Registrar is of the opinion either on the application of the Respondent or of his own motion that an application discloses no reasonable grounds for leave to appeal, or is frivolous or fails to comply with these Rules, he may issue a summons to the applicant calling upon him to show cause before the Appeal Committee why the application should not be dismissed.

(2)  The Appeal Committee may, after considering the matter, order that the application be dismissed or give such other directions as the justice of the case may require.    

When dealing with the appeal of the plaintiff pursuant to the above legal provisions, the Registrar or the Appeal Committee may dismiss or refuse the application for appeal where he / it is of the opinion that an application discloses no reasonable grounds for leave to appeal, or is frivolous or fails to comply with these Rules.  “Discloses no reasonable grounds for leave to appeal” should be obvious requiring no further explanation.  Such an action is also obviously frivolous requiring no further explanation either.  Generally speaking, “reasonable grounds for leave to appeal” involve issues on legal principles, which are points of law, and it may be difficult for those who have not received any professional legal training to understand.  The large amount of documents or statements submitted by the plaintiff to the CFA may not be relevant to the “reasonable grounds for leave to appeal”. Ordinary unrepresented appellants may think that the CFA in dealing with appeals should consider the evidence and legal points of the lower courts  and then assess them afresh.  They do not understand this is not the proper way to do it.   Therefore, the documents or materials submitted may not constitute any “reasonable ground for leave to appeal”.  The substantial documents and submissions of the Plaintiff may not be related to “reasonable ground for leave to appeal”. The plaintiff cannot say that he has submitted a large amount of documents to the CFA and the Registrar or the Appeal Committee has made a decision without reading them or taking them into consideration.  This is an unfounded allegation, which I cannot accept.  Therefore, in my judgment, it is impossible for the plaintiff to amend his writ of summons for the continuation of his action against the 1^st defendant.

15.  As far as the 2^nd to 5^th defendants are concerned, the plaintiff claims against the Registrar and the Permanent Judges of the CFA based on the above causes.  According to the decision in Choy Ping Wing above, the plaintiff in fact cannot claim against the Registrar or the Permanent Judges.  Therefore, in my judgment, the causes of action put forward by the plaintiff cannot be accepted at all in law, nor can they be amended for the continuation of the action. They should be struck out.

16.  Accordingly, pursuant to Order 18 rule 19 of the Rules of the High Court, I strike out the writ of summons of the plaintiff.

17.  There be no order as to costs.

18.  If the plaintiff is dissatisfied with my decision, he may, pursuant to Order 58 rule 1(3) of the Rules of the High Court, lodge an appeal within 14 days after the handing down of this decision.

[1] Paragraphs 5 and 6 of the original: “5. The constitutional right of access to the courts is well established under the common law and is guaranteed by the Basic Law (Article 35).  But it would be absurd to suggest that the right of access involves a right to abuse the court’s process… 6. …The proper and effective exercise of the court’s jurisdiction to prevent abuse, both statutory and inherent, is essential to the prevention of injustice to the other parties to the litigation in question as well as the operation of a fair and efficient judicial system.”

[2] Refer to paragraph 25 of the judgment.

[3] The original is as follows: “The claim must be obviously unsustainable, the pleadings unarguably bad and that it be impossible, not just improbable, for the case to succeed before a court will strike out.  If the court does not think the matter to be clear beyond doubt or if it fails to be satisfied that there is no reasonable cause of action or that the proceedings are frivolous or vexatious, then, there should be no striking out.”

[4] See Ha Francesca v Tsai Kut Kan (No.1) [1982] 1 HKC 382 at 392, per the Court of Appeal, cited in paragraph 40.

[5] The original is as follows: “Ever since the year 1613, if not before, it has been accepted in our law that no action is maintainable against a judge for anything said or done by him in the exercise of a jurisdiction which belongs to him.  The words which he speaks are protected by an absolute privilege.  The orders which he gives, and the sentences which he imposes, cannot be made the subject of civil proceedings against him.  No matter that the judge was under some gross error or ignorance, or was actuated by envy, hatred and malice, and all uncharitableness, he is not liable to an action. …”